56 Ga. 430 | Ga. | 1876
Lead Opinion
This was a bill filed by the complainant against the defendant as administrator of Jane C. Howard, deceased, praying for an injunction to restrain the defendant from prosecuting an action of ejectment pending in the superior court of DeKalb county, until an appeal case from the court of ordinary, pending in said court, should first be tried. On the hearing
The allegations in the bill, upon which the complainant’s equity is based are, that at the death of the defendant’s intestate the complainant was her sole heir-at-law; that the land which the defendant is seeking to recover in his ejectment suit descended to him as such heir; that he is in the possession thereof, and that the defendant’s intestate owed no debts at the time of her death; that the defendant obtained an order from the court of ordinary for leave to sell the land of his intestate for the payment of her debts, upon the issuing of the usual citation by the ordinary, and publication thereof, as required by the 2559th section of the Code; that the complainant never saw that published notice, and had no other notice of the application for leave to sell the land by the defendant until after the order was granted; when he ascertained that such an order had been granted he applied to the ordinary to have said order set aside, on the ground that he had no legal notice of the application for leave to sell the land of the defendant’s intestate, which motion the ordinary overruled, and the complainant entered an appeal to the superior court; that the ejectment suit of the defendant stands first on the docket of that court, and will be called and tried before the appeal case, unless the defendant shall be restrained from doing so by the injunction prayed for. Assuming the allegations in the complainant’s bill to be true, as the defendant’s demurrer thereto does, are the same sufficient to authorize a court of equity to interpose by granting the injunction prayed for by the complainant? The solution of this question necessarily depends as to what is the proper construction to be given to the statutes in relation to the question involved. The 2559th section of the Code declares that “ If at any time it becomes necessary for the payment of the debts of the estate, or for the purpose of distribution, to sell the land of the decedent, the administrator shall, by written petition, apply to the ordinary for leave to sell, setting forth in the petition the reason for such application; and no
Let the judgment of the court below be reversed.
Dissenting Opinion
dissenting.
In this case my brethren and myself are agreed that under section 2486 of the Code, the notice to Howard, the heir, by Davis, the administrator, should have been personal notice to conclude him; but we differ on the point in what forum the judgment of the ordinary should be attacked. A majority of the court think that it may be done in the superior court on the trial of the ejectment; I think it can be done only in the court which rendered the judgment, and that is the court of ordinary. The bill was filed to suspend the trial of the ejectment until the motion to set aside, which was pending on appeal from the ordinary, could be heard, the ejectment standing first for trial on the docket. The necessity for the bill and the injunction depends, of course, on the issue whether the superior court, on the trial of the ejectment, can attack the judgment of the court of ordinary for irregularity in the no
The order granting leave to sell is a judgment: 7 Georgia, 559; 47 Ibid., 202. The court of ordinary is a court of original, exclusive and general jurisdiction of the sale and disposition of the real property belonging to, and the disposition of, deceased persons’ estates, and of all other matters and things relating to estates of deceased persons: Code, section 331; acts of 1855-6, page 147; 14 Georgia, 27; 24 Ibid., 245. If a court of general jurisdiction in respect to the disposition and sale of real property, it had jurisdiction of this land to order its sale, and of the administrator and the heir to pass upon the necessity of the sale as between them; and its judgment on that subject, for any irregularity of notice or otherwise, cannot be collaterally attacked, but must be attacked in that court which rendered it, Code, section 3593; 13 Georgia Reports, 1; 14 Ibid., 325; 30 Ibid., 961. In Tucker vs. Harris, 13 Georgia Reports, 1, it is ruled distinctly that the court of ordinary is such a court, and its judgment is so to be regarded, and the present chief justice expressed his hearty concurrence in the decision, though having been of counsel he did not preside. If this judgment were void for want of jurisdiction of the person and subject matter, or for any other cause, then it might be attacked collaterally on the ejectment trial: Code, sections 3594, 3828. But is it void? My brethren concede that it is not. It is good, they say, to order the sale of this land, and they cite section 2559 of the Code to show its validity for that purpose. If valid for any purpose it is not void; and, therefore, it must be attacked in the court of ordinary which rendered it. Notice was given by publication, not personally. It is defective in the mode of the notice, in its irregularity, not void for want of jurisdiction; for the court had jurisdiction of the subject matter, the sale of the land, and of the persons, the administrator and the heir. My own opinion is that section 2559 of the Code is controlled by section 2564, and restricted as to all persons in possession holding ad
In my judgment, the concurring opinion of Judge McCay, in Davie vs. McDaniel, on page 208 of 47 Georgia Reports, embodies the whole law in few words, “multum in parvo.” Those words are these: “The rules prescribed by the statute regulating the mode of doing business by the courts of ordinary ought always to be conformed to; and if they be not conformed to, the judgments are irregular, but they are not for that reason void. An irregular judgment cannot be attacked for that reason before another tribunal; to justify such an attack, the judgment must be void.” To attack this judgment in the case at bar, I think, for the foregoing reasons, it was necessary to move in the court of ordinary, as the defendant in error did, and as the ejectment would be tried before his motion on appeal could be heard to set aside the judgment, I think the bill and injunction necessary, and that the judgment sustaining the bill and granting the injunction should have been affirmed: See Stell vs. Glass, 1 Kelly, 486; Clements vs. Henderson, 4 Georgia Reports, 148; McDade vs. Burch, 7 Ibid., 559; Tucker vs. Harris, 13 Ibid., 1, (page 16 particularly;) also, 14 Ibid., 27; 24 Ibid., 245; 15 Ibid., 346; 3 Kelly, 110; 30 Georgia Reports, 961; 50 Ibid., 231; 14 Ibid., 325, and dissenting opinion of McCay, judge, in Fischesser vs. Thompson, 45 Ibid., 459.